Brahaney Drilling Co.

BRAHANEY DRILLING COMPANY Brahaney Drilling Company and Local 826, International Union of Operating Engineers, AFL-CIO. Case 16-CA-3443 June 2, 1969 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On March 6, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Brahaney Drilling Company, Midland, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BoYLs, Trial Examiner: This case was heard before me in Odessa, Texas, on January 21, 1969. The complaint was issued on October 15, 1968, based upon a charge filed on October 7 , 1968. It alleges that Respondent, Brahaney Drilling Company, Inc., violated Section 8(a)(5) and (1) of the Act by unlawfully refusing to bargain with Local 826, International Union of Operating Engineers , AFL-CIO, herein called the Union. Respondent filed an answer , admitting that it had refused to bargain with the Union but denying, for reasons hereinafter set forth , that its refusal to bargain was unlawful . After the conclusion of the hearing , the General Counsel and Respondent filed briefs, which have been carefully considered. 289 Upon a consideration of the briefs of the parties and the entire record in this case, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business in Midland, Texas, from which headquarters it is engaged in the business of drilling oil and gas wells in the Permian Basin area in Texas and New Mexico. During the 12-month period preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000, of which amount services valued in excess of $50,000 were performed in states other than the State of Texas. Respondent concedes and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Local 826, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. POSTURE OF THIS CASE AND ISSUES PRESENTED This case comes to me in an unusual posture . Normally issues which were or could have been litigated in a representation proceeding may not be litigated or relitigated in a refusal-to-bargain unfair labor practice case based upon the underlying representation proceeding. The Trial Examiner would be bound by the Board's decision in the representation case and would be in no position to overrule the Board , regardless of whether he agreed or disagreed with the Board.' Both Respondent and the General Counsel in this case , however, assert that because of a special reservation in the Stipulation for Certification Upon Consent Election in the representation case, Respondent is entitled in this unfair labor practice case to present evidence in support of its contention that the Board's requirements for voter eligibility as set forth in Hondo Drilling Company, N.S.L., 164 NLRB No. 67 and Carl B. King Drilling Co., 164 NLRB No. 68, are not applicable to Respondent.' The special reservation in the Stipulation for Certification Upon Consent Election to which the parties refer, consists of the following provision: Hearing and notice thereof, Direction of Election, and the making of Findings of Fact and Conclusions of Law by the Board prior to the election are hereby expressly waived ; provided, however, that this Stipulation for Consent is without waiver of or prejudice to the Employer's right to contest and litigate through 'Pittsburg Plate Glass Co. v. N L R. B., 313 U.S. 146, 162; Rules and Regulations, National Labor Relations Board, Series 8, as amended July 8, Sections 102.67 (f) and 102.69 (c). 'In those companion cases involving employment patterns of employees of oil well drilling companies in the Permian Basin area (in which Respondent is also located), the Board fashioned a formula, described infra, for compiling voter eligibility lists which it believed would fairly and realistically resolve the question of voter eligibility in representation elections for employees similarly situated. See also Moran Oil Producing and Drilling Corporation, 174 NLRB No. 26, Wek Drilling Co. Inc., 174 NLRB No. 92; and 32nd Annual Report of NLRB, p. 66-67. 176 NLRB No. 34 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objections to the election , Section 8(a)(5) procedures or otherwise the validity of or applicability of the particular voter eligibility rule followed by the Regional Director for the employees of this Employer in this election, pursuant to direction of the National Labor Relations Board in Hondo Drilling Company, N.S.L., 164 NLRB No. 67 and Carl B. King Drilling Co., 164 NLRB No. 68. Although I have some misgivings as to whether the General Counsel and Respondent have properly interpreted this provision to permit Respondent to adduce in this complaint case evidence which it was afforded an opportunity to adduce but failed to adduce in the underlying representation case, I have accepted that interpretation for the purpose of this case and have received all evidence proffered on the issue as to the propriety of applying to Respondent the voting eligibility rule applied by the Board in the Hondo and King cases cited above . This rule or formula, sometimes referred to as the Hondo rule, provides that the unit employees eligible to vote should include not only those appearing on the employer's payroll immediately preceding the issuance of the Regional Director's Notice of Election (subject to the normal qualifications pertaining to eligibility), but also those employed by the employer for a minimum of 10 working days during the 90-calendar day period preceding the issuance of the Direction of Election, who have not been terminated for cause or quit voluntarily prior to the completion of the last job on which they were employed. IV. THE REPRESENTATION PROCEEDING Pursuant to the Stipulation for Consent signed by Respondent and the Union on March 21, 1968, an election was conducted on April 11. The Tally of Ballots showed that out of 23 eligible voters , 18 (including one challenged voter) cast ballots - 11 of them for and 6 against the Union. Respondent thereafter filed timely Objections to the Election, contending that the Hondo rule for determining eligibility of employees to vote was inapplicable to Respondent 's operations. The Regional Director on July 2, 1968, issued his Report on Objections, reciting, inter alia, that although Respondent had been requested to supply evidence in support of its objections, Respondent had failed to do so and, instead, had merely furnished the names of eight persons on the eligibility list whom it claimed were not employees of Respondent and had insisted on a hearing on its objections. He concluded that since all eight of the persons whose right to vote Respondent was then challenging were on the eligibility list furnished by Respondent pursuant to the Hondo formula and no evidence had been furnished to show the inapplicability of that formula to Respondent's operations, the objections should be overruled. Respondent on or about July 10, 1968 filed Exceptions to the Report on Objections, reiterating its contention that it had a right, pursuant to the reservation in the Stipulation for Consent hereinbefore quoted , to a hearing on the applicability of the Hondo formula to its operations. The Board , on September 11, 1968, issued its Decision and Certification of Representatives, overruling Respondent's exceptions, adopting the Regional Director's findings, conclusions and recommendations and certifying the Union as the representative of Respondent's employees in the agreed upon appropriate bargaining unit. V. THE EVIDENCE ADDUCED IN THIS UNFAIR LABOR PRACTICE PROCEEDING The evidence adduced in this case bearing upon the applicability to Respondent of the voter eligibility formula applied by the Board in the companion Hondo and King cases, and comparable data shown in the latter cases, are set forth below. From its base or principal place of business in Midland, Texas, Respondent drills wells in the Permian Basin located in the western part of Texas and the eastern part of New Mexico, pursuant to contracts with various oil companies.' Respondent owns five rigs but all of them are rarely in operation at any one time. During the period between January 1966 and February 1968, which Respondent contends is a representative period, it operated an average of only 2.08 rigs at one time. This compares with an average of 2 or 3 operated by Hondo and 1.81 operated by King. Because of the size of Respondent 's rigs, Respondent contracts to drill wells between 9,000 and a maximum of 13,500 feet deep. A deep well would normally take longer to drill than a shallow well and employees remaining for the entire drilling period would accordingly be employed for a longer period of time on a deep than on a shallow well. During the period between January 1966 and February 1968, it took Respondent an average of 56 days to drill a well.' Hondo, which drills wells to a maximum depth of 11,000 feet, took an average of only 18 days to drill a well . King, on the other hand, which drills to a maximum of 20,000 feet, took an average of between 60 and 70 days to drill a well. Each of Respondent's rigs, when in use, operates on a 24-hour basis. This means that three crews of men, each normally working 8 hours a day, 7 days a week, are needed to drill a well. Each crew at Respondent's wells consist of five men, a driller, who is a supervisor, and four employees called roughnecks.' Accordingly, for each 24 hour-day, the drilling of a well requires 3 drillers and 12 roughnecks. Occasionally, when a driller is temporarily shorthanded, a roughneck may double and work two "tours" or shifts. The driller normally hires his own men and may also fire them. When hired by Respondent, the driller is expected to furnish his own crew of roughnecks. This is the general practice in the oil well drilling business, at least in the Permian Basin area. Drillers in the Permian Basin area have difficulty in recruiting and keeping roughnecks who are readily available for all drilling jobs . There are a number of reasons for this situation . Among them are the great distances which the men have to travel to and from their homes and the situs of the wells , and their working conditions. As one driller, Warren, testified, sometimes they have to travel about 100 miles each way for 8 hours 'The Board found in the Hondo case that the Permian Basin encompasses some 95,000 square miles This average has been figured from the data embodied in Resp. Exh. 2, the schedule of operating days for Respondent 's five rigs during the period from January 1966 thru February 1968. This schedule shows that the average drilling time per well for Rig No. I was 55.5 days; for Rig No. 2, 47.2 days (excluding the first 9 days listed on the schedule because that well had been commenced in 1965); for Rig No. 3, 55.4 days; for Rig No. 4, 73.4 days (excluding the first 43 days entry because that well had been commenced in 1965 ); and for Rig No . 6, 47.71 days (excluding the first entry of 37 days and the last entry of 4 days because the first entry represents a well commenced in 1965 and the last entry represents a well completed subsequent on February 1968). 'The roughnecks consist of a motorman, derrickman, and two floormen. BRAHANEY DRILLING COMPANY of work. The wells are seldom near highways and are often not easily accessible. The 7-day weeks the men are required to work, with no holiday except at Christmas and even then only if the well can safely be shut down, make prolonged periods of work unpleasant, if not unbearable. Moreover, even if a roughneck desired to continue work, without a break, upon completing one well, there is no assurance that work with Respondent on another well will be immediately available or that its situs will be within a commutable distance. The roughneck, if he does not wish to stop and rest between drilling jobs, may find more readily available work, or work closer to his home, with some other drilling company and not be available for work on the next well Respondent may be preparing to drill. Respondent's records show that during the year 1967, which it represents to be typical, the roughnecks on its payroll worked an average of only 32 days each.6 This compares with an average of 34 days per year for each roughneck working for Hondo and an average of 44 days per year for each roughneck working for King. Of the 228 roughnecks who worked for Respondent during 1967, 51 of them worked on two or more rigs and they averaged 100 days of work. At Hondo, out of 224 roughnecks working in 1 year, 53 worked on two or more rigs and averaged 88 days of work. No corresponding figures appear in the King case . It does appear in that case, however, that out of 174 roughnecks employed in 1 year, 21 were regularly available for work with King and averaged 201 days per year and that of the remaining 153 roughnecks, 89 percent had no prior employment history with King; 48 of the total number worked 44 days or more.' The 21 longest employed by Respondent averaged 159 days. A comparison of Respondent's operations and its pattern of employment with those set forth by the Board in the Hondo and King cases shows much similarity and no significant differences with respect to the pertinent facts. It is accordingly found that the formula for voting eligibility established by the Board in the Hondo and King cases was properly applied in this case and that the Union was validly certified on September 11, 1968 as the representative of Respondent's employees in the appropriate bargaining unit. Respondent concedes that on or about September 12, 1968 and thereafter the Union requested it to bargain collectively and that Respondent has continuously refused this request. CONCLUSIONS OF LAW 1. All derrickmen, motormen and floorhands, otherwise referred to as roughnecks, employed by Respondent in the drilling of oil wells in the area known as the Permian Basin, but excluding all tool pushers, drillers, office employees, technical employees, professional employees, 'Reap . Exh. I shows that 228 roughnecks worked a total of 7 ,339 8-hour days during the 10-month period when Respondent's rigs were operating in 1967. The record affords no explanation as to why no rigs were operating in March and April of that year. 'An examination of Resp . Exh. I shows that only four roughnecks worked for Respondent for more than 200 days in 1967 . A stipulation entered into by the parties (G. C. Exh. 3), however, shows that between April I, 1967 and March 31 , 1968, 43 of the total of 204 roughnecks employed by Respondent during that period worked more than 50 days, 9 of them working for more than 200 days . King, unlike Respondent, had hospitalization benefits and a vacation plan for employees working for substantial periods of time and this fact may have contributed to longer periods of service by some of its roughnecks. 291 guards and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Since September 11, 1968, Local 826, International Union of Operating Engineers, AFL-CIO, has been the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing on or about September 12, 1968, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all its employees in the appropriate unit, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, my Recommended Order will require that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered: A. For the purpose of determining the effective period of the certification, the initial year of certification shall be deemed to begin on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit described herein below.' B. Brahaney Drilling Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate unit: All derrickmen, motormen and floorhands, otherwise referred to as roughnecks, employed by Respondent in the drilling operations in the area known as the Permian Basin, but excluding all tool pushers, drillers, office employees, technical employees, professional employees, guards, and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining representative for the period provided by law. See Mar-Jac Poultry Co., Inc., 136 NLRB 785; Commerce Co. d/b/a Lamar Hotel. 140 NLRB 226, 229, enfd. 328 F 2d 600 (C.A. 5), cert . denied, 379 U.S. 817, Burnett Construction Co., 149 NLRB 1419, 1421 , enfd. 350 F.2d 57 (C.A. 10). 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work , and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its Midland, Texas, headquarters copies of the attached notice marked "Appendix."' Copies of said notice, on forms to be furnished by the Regional Director for Region 16, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Recommended Order, what steps it has taken to comply herewith.' e order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit consists of: All derrickmen, motormen and floorhands, otherwise referred to as roughnecks , excluding tool pushers, drillers, office employees, technical employees, professional employees , guards and supervisors as defined in the Act. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in BRAHANEY DRILLING COMPANY, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.